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tv   [untitled]    June 25, 2013 6:30am-7:01am PDT

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and won most of them. i have been through this and so i don't recall any specific citation as to there is a requirement that each instance be marked and annotated to the reason and i don't recall any reasons and i know that after we filed a complaint and then the arts commission did whatever it is for the section one and of the california constitution. >> i am just reading what seems to be either earlier or note by you and you do say... in the citation of the authority that you got an answer when you looked at the documents you were answered. >> could you read it? >> did i say that i was given chapter and verse citation as to why? >> no. i didn't say that. your note says when we insisted on reviewing the original documents, at the office, and not just the photo copies we were offered, we found white pieces of papers, there was no
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explanation in the written material provided to us. this is completely consistent with what you said, and i am justifying. only when we asked about the originals being redacted were they told that these were brackets confidential personal addresses but without any citation of statutory authority. that is consistent with what you are saying here. just answering the question that you did not leave unaware that there were redactions, you identified it, it was confirmed by the staff. >> right. and the result of becoming aware of the redactions was our complaint which is also in your packet and which was against the arts commission for the redaction of those records. >> any further discussion on this? >> any questions?
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i think that we all appear to be in agreement. >> so will you have felt differently from the outset, when you were, when you requested to look at the speaker cards, that you would have been told whether specifically, annotated or even in general could have accepted a general answer, what you were about to see are redacted cards and it is because of x, would you have thought differently about it. it feels like well, you have noted that you think that they are hiding something from you. you believe that private addresses and e-mails should be public. but would you have felt differently. >> i don't very them to to that description. >> let me state it on the question. would you have felt differently about it because it feels like you also think that there was
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something nopharious or something not so... >> yes. that is the word. i would have felt like they were being honest and open. >> with that have allowed you to accept the fact that they did redact them? >> no. it would have reduced the charge if you like, and would have reduced it so that i would not have had any kind of objection on the basis of, there is i section of the sunshine that requires that any redactions be marked and provided with a specific citation as to why they were redacted. and that, i believe, again, it has been a year and a half since we filed and it has been more than a year since the order of determination and it has been more than two months since your last meeting, was canceled when i went through all of this stuff to prepare and by the way, i was not given any explanation about what happened except there was a lack of a quorum.
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so i have not gone through it yet again, but certainly the separate requirement to annotate and to specify, that would have been one less complaint, and yes, the arts commission has throughout this whole process been in a range of ways which really is not specifically relevant, but they have been contentious and we have gained multiple violations of all kinds of violations of sunshine that have not come before you. so yes, to go there and to be given a photo copy with no indication of redactions, and we would have been less distressed, yes. >> i think that mr. andrews has brought up an important issue. and i appreciate his response.
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it appears that the actual referal, the march, 7, 2013, task force letter to us, refers to the failure to respond timely which was addressed, the failure to keep withholding to a minimum by providing unredacted speaker cards which was the second issue with the concern of the memo and the third issue is the failure to justify withholding the redacted information, which i think is the issue that mr. andrews has just pinpointed. and on that, i am not sure that we do have an answer. i was there and i have a written explanation of why they redacted came in response to a complaint. and there may have been a
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general claim of privacy but that is not a citation of chapter and verse specifically. and privacy and there are pages and pages. >> we are not addressing this. >> mr. warfield. >> thank you. >> it is our turn to talk about this. >> looking at the memo is more helpful but to me it seems that the one that we are talking about now is the improper redaction. >> okay. >> that... >> right. >> i think that i am still on number two. >> okay. and i appreciate that. >> but. >> mr. andrews has brought up which is a good thing. >> but i want to know whether number three is the failure to justify withholding the redacted information at the time... >> is the... >> is that the third or is
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it... failure to comply with the order of determination issued april 5th, which is the staff memo? >> right, if we were going to take them together i feel like we need to know what we are talking about. before we make a motion on the second. >> right. >> so we are looking at page 2 of the april 5, order of determination and at least that is what i was looking at. >> i am looking at march 7. >> 2012. >> yes. >> i was looking at march 7, 20... no you are right, it is april 5, true. it is april 5th. according to this, the referal item two is improper redaction. >> right. >> and number three is failure to justify withholding the redacted information and your question is that the same as
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willful failure to comply with the order of determination? >> and is that... the city attorney question, is that, is there a requirement that at the time that you make the... that the request is made you have to justify withholding the redaction? >> you know, i don't know. i'm not... i don't know the answer to that. >> i am tempted to make a motion on number two, 6726 about improper redaction and then, ask staff to look at these are not even on the third, items are not even under the same section. the task force said that it was
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a 67-27 and the staff memo says 677-34 for willful failure. >> right. >> i wonder if breaking them apart and deciding that each one separately might... help us. >> i will ask the staff, can you just explain the difference between the memo and the order of determination. >> and to be honest. let me try to sort that out. and i am not sure what difference you are speaking about because you are prohibited in looking into the regard to see what the motion and you are going on the referal and the second page of the referal it says, is at the december 5, 2012, task force meeting, it moved to refer that to the official violating 225,
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a, 67-26 and in the memo i think that i pointed out that although they found a 677-27 violation that was not included in the referal paragraph. whether or not you want to vote on that is your decision. >> and this one says 67.34 and so it is over the course of that nine months or so, they changed. and not the viewer consistent and the failure to comply with their memo which would not have been an issue at the time that they issued. >> got it. >> pushp and i guess that the concern is maybe the 67.27 violation was not intended to be referred to us? >> right. >> given... >> we can only go by what the referal is here. >> while we have you here, is
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it possible to ask one more request madam chair? >> that exercise of both of it today. and do you disagree with mr. warfield's account about what happened on december 20th? >> okay. >> so, i have miss rich yes's response indicating that we had prepared speaker cards for him to pick up and in the e-mail response she does not site the california constitution article 1 section one. however. in her response to the sunshine task force she does say that essentially that she did explain that there were no speaker cards for any of the other meetings and to protect the individual's right of privacy, so she did verbally explain it to him which is consistent with what he has put
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in his e-mail. and yeah. so... >> okay. >> does that help? >> that does not answer my question. but thank you. >> so, we are looking at what 67-26? >> and 67.34? no? eyes. >> yes. >> agree with with that >> shall we. >> if you read 67.26 specifically, clearly technically they did not comply with what was required. that is when you make them redact it and it says that you have to note it and it gives your justification. and 67.27, says what or how is the justification must be
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spelled out. neither of which certainly were not technically comply with. >> but they have been voting on 67.26 and 67-34. >> there is no motion before you >> i know. but that is what we are looking at. >> so. >> yeah, it is an interesting question commissioner renne? but if the order of determination is limited to the portion of 67 hpt 26 that talks about whether the withholding was appropriately kept in the minimum, than i would be prepared to vote on that. if we are going to interpret the order to say failure to provide the justification at the time, that is arguably a different, that for some reason
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does not appear to have been put before us. and but i agree that it is some what ambiguous. >> could you tell me, specifically what you are looking at in the order of determination? is it april 5, page 2? the decision and order of determination? >> seems to me that that 67.26 for failure to keeping the withholding to a minimum without properly redacting. >> by properly redacting from the speaker cards. >> my problem there is i would have no trouble finding redacting the information in terms of the presentation as commissioner renne said. but, whether it was related to a minimum, seems to be a
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separate question. that is the question answered by whether this information was private or not. >> what i think that they did not do under 67.26 is say that we redacted here, the constitution and here. and they did not say anything about the redaction or the basis for it when they provided those documents but that is only half of the sentence from the task force. we don't know without reaching the question of what information they were entitled to treat as private and therefore, withhold whether they or anything about a minimum or an aappropriate level of redaction. there was a violation for it. how they informed them about the redaction. so i don't know whether we have to take these as though they are pleadings, and they have to nail and it get it right, or whether we can find a violation where we see a violation to me this is the hybrid of two
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pieces one of which is true and one of which is separate and a different question. and am i complicated? >> it is the ambiguity there and maybe there is. >> it is a file lur to keep it to a mun mum by improperly redacting seems like two... >> i know, but the improper redaction to me is redacting too much not that you did not notify them, but maybe that is... >> those are two separate questions. >> right. >> the right amount and whether it was noticed properly. >> right. >> but i don't know what we do with this as a pleading. >> if it were noticed properly, and it was right about it. all that we would be talking about is the amount that was redacted in which case when we were talking about the city attorney making a determination
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on it he was clear. >> one of the problems that i have is that it seems to me that part of the mission or the obligation of this commission, is a certain amount of education. and if in fact the arts commission did not follow what 67.26 provides, it seems to me that we had an obligation to say this they didn't. what are the consequences of it? we don't know, it certainly serves as a reminder to these other agency and the commission, that if they are going to redact the material, that they have got to comply with what the 67.26. >> what i don't want is the especially that is what we mean and i don't want to seem like we are saying phone numbers and e-mail address and personal
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addresses cannot be redacted. >> separate question. >> right. >> so whatever our motion is, i think that we need to be clear about it. because if we said that we failed to comply with 67-26. >> you could have done the right thing but the wrong way. >> but do you want to try a motion? >> you were starting to. >> i will try, but i could use help. >> the commission finds a violation of 67-26 by the... so the custodian of records, miss patterson or the arts commission, that is a bracket to be completed, for improperly redacting, by failing to identify, failing to properly identify the redactions in the
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responsive documents. you could say some of the information speaking to the motion and you could have information that is completely proper to withhold. and that will be redacted properly. >> and you could have information to withhold and not tell anybody that you have done it and this is only going to the process of of the redaction and the notice of the requestor. >> in which case for me it would be the commission that you would find the violation? >> because the head of the commission delegated this authority to the custodian and did not follow up and just engaged a few key individuals who engaged the city attorney and the city attorney made the determination and then you moved forward and weren't required to follow up with the commission head and you were
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just to follow the advice of the city attorney. >> with all respect, i sense that the redaction may have been done with the records custodian and the question about what information was private. i think that your analysis may be right. >> i would move that the commission finds that the arts commission and/or its designated employees failed to comply in redacting material, failed to comply with the provisions of 67.26. >> i think that is too vague. >> in the appropriate, i think that you made... >> properly. >> and improperly redacting. >> yeah that is it. >> finding i am prorer redaction. >> that is hard. >> the redaction itself and saying that in making the redaction, that they failed to
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comply. >> with the appropriate justification for said redaction. >> or a lot of you and not all that is required to do. and it is more than that. it says that they shall be asked. >> and otherwise segregated. and key to a footnote or another clear reference, withholding the section, section 27 in this article. and appropriate identification and justification. >> well, why can't we just use the language that it is in the order of the determination here? >> in the decision? >> my concern is that it is too broad. because that focuses on possibly what the contents of the redacted material was and we are not addressing that, we are addressing the procedure they followed in reaching and making the redaction. >> don't we need to both.
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>> we do need to address both but not necessarily in the same motion. >> do you think that we need to do them in the same motion? >> i guess that if we are addressing 67.26 and i will put this in motion language, but the two points that i think are important is one that the commissioner renne made that the procedure is not followed. >> right >> but secondly that the respondent has met the burden for failing to keep withholding to a minimum. >> >> there are too many negatives in there. >> right >> but the respondent has met the burden of showing that there was not a failure of keeping the withholding to a minimum. >> still too many negatives. >> they did not redact too much, they did not redact or follow the procedures for redacting. >> they did not describe the redaction properly but they did not take it and they did not redact more than they should
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have. the redactions were two parts, were they okay. and second did they do them properly? >> right. >> is it better in two in >> i read the sunshine ordinance, 67.26. only deals with redaction. and it does not deal with whether or not the redactions are appropriate. >> that has nothing to do with 67.26. >> 67.27, is the one that focuses on whether this reduction was proper. all right? and so, that one could one, and i am not sure that we have a basis for saying whether the
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redaction was proper. because the city attorney is saying, yeah you can redact it, and the sunshine task force saying that we don't i think that it is appropriate and he is saying that somebody address is not private information. and it may or may not be, it has been... the individuals involved. and but the point is, it seems to me that the clearly they did not follow 67-26 in making the redactions. they did not follow the procedure in doing it. >> well, then i will suggest that we do two separate motions then. >> we have a motion with commissioner renne? >> how can you say that 677-26 does not apply to what you can and whether you have withheld too much or not.
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no record shall be withheld unless all of the information contained in it is exempt from the disclosures in the pra. >> right. >> have you violated 67.26. >> didn't you say all information? >> i thought that it was prepared to make the decision. >> yes. >> and you are not prepared to make a decision about whether they redacted too much because you think that soughts of our... >> one is i have not seen what they redacted. so how could i make a determination when they redacted was confidential. >> and in other words, if you are asking a court to determine whether the redaction was proper, the judge would look at the cards and say hey, that should not have been redacted but i don't have a i don't know
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what they redacted. >> what they redacted were addresses. mailing or street or e-mail addresses. what i feel that i don't have is it our responsibility to make a legal determination and get a legal memo from the city attorney on this, or to say that they were entitled to rely on the city attorneys' opinion that these were private pieces of private information that did not need to be disclosed and that may be the end of the subject. >> there is a motion on the floor but not seconded? >> no. >> no? >> pushp
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>> i thought that there was a motion that he was working towards? >> it was not complete. >> yes. >> then i will repeat it my motion was that the commission find that the arts commission did not comply in making its redaction did not comply with the requirements of 67.26. withouter reference to whether or not the redactions, the redacted material was properly redacted. but they did not do what 67.26 required them to do. >> i would second that motion, if you added a phrase something like appropriate notice in justification. >> you may have another second who may take the motion >> that is fine.
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>> i think that it would be helpful to clarify. i would like to add that. >> second. >> further discussion? >> a motion now, it puts the language... >> can you read that back to us, please? >> the motion is to find that the arts commission did not comply with the requirements of section 67.26 in making its redactions, and then i believe commissioner studley added without the proper or appropriate notice and justification. >> okay that is fine. >> public comment? >> commissioners ray hartz director of san francisco open government. i think that the important part of 67.26 reads as follows,
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information that is exempt from disclosured shall be masked in order that the non-exempt portion of the record may be released and keyed by footnote or other clear reference to the appropriate justification for withholding the required by section 67.27 of this article. i think that is pretty clear. and i like to point out another thing and nowhere in the sunshine ordinance task hearings, have we actually received anything to show what the city attorney said about this matter. is there any possibility that maybe the discussion was held and was very convoluted and miss patterson misunderstand what the city attorney said and or any possibility that someone might come over and to cover their back side and said that the attorney said it. nowhere have you got anything to show what the city attorney said about this matter. and you are going on and on and
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on about the city at attorney said this or that and you have no idea and you just have a bunch of here say and the people with request in this and saying this is what i was told. and that is it. a lot of changes have been made by mr. chaffy by the way, and it mentioned several of them together. and the meetings. and unless you fill out a speaker card you can't speak. we know that it is a violation to the ordinance. now they change the card to make it clear that is not a requirement. they have also changed this card. if you don't need this information why are you asking for it? ? but the bottom line is if i fill out a public document i assume that it is all public record and unless it is something like a medical record or something that is specifically says it is confidential,